September 17, 2013
ANTHONY BOONE, Appellant,
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2013
On appeal from the New Jersey Department of Corrections.
Anthony Boone, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Alvarez and Maven.
Anthony Boone (Boone) is an inmate currently confined in Northern State Prison. He appeals from the October 14, 2011 final decision of the Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing prohibited act .256 (refusing an order by any staff member), in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The following facts are pertinent to our decision. On September 20, 2011, Boone was transferred to East Jersey State Prison (EJSP). Upon entering 3-Wing of EJSP, Senior Corrections Officer M. Natale (Natale) ordered Boone several times to "lock in." Boone refused, and stated, "I will not lock with a Homo." Natale then notified Sergeant Lancaster to report to 3-Wing and Boone was escorted out of the unit.
On September 21, 2011, Boone received notice of the .256 charge. That same day, the DOC conducted an investigation during which Boone requested a counsel substitute. Boone neither made a statement nor named any witnesses. Boone submitted a request for information and documentation.
A disciplinary hearing was originally scheduled for September 23, 2011, but was postponed twice to accommodate Boone's information request and scheduled court appearances. Hearing Officer Nolley (Nolley) conducted the hearing on October 14, 2011. Boone pled not guilty.
Boone and his counsel substitute attended the hearing during which he withdrew his request to confront Natale. Boone testified that being placed with a homosexual inmate was against his religious beliefs, and alleged that "the Imam [doesn't] want to submit a statement because he [doesn't] want to make a statement against the other guy." Boone's counsel substitute argued that the "lock in" order was unreasonable, that the prison should have considered Boone's objection before placing him in the cell with the other inmate, and that Boone "was trying to avoid a situation."
Following the hearing, Nolley considered several documents and physical evidence, including statements made by prison officers and Boone, and Boone's information request. Nolley showed Boone and his counsel substitute an adjudication report and the evidence he considered. The counsel substitute signed line sixteen of the adjudication report, indicating that the information accurately reflected what had occurred at the adjudication hearing.
Relying on the prison officers' reports, Nolley found Boone guilty of charge .256 and imposed ten days of detention, ninety days of administrative segregation, and fifteen days loss of recreational privileges. Boone filed an administrative appeal. On October 17, 2011, the Assistant Superintendent upheld the decision and sanctions.
In this appeal, Boone raises the following contentions:
I. IN VIEW OF THE CIRCUMSTANCES SURROUNDING THIS MATTER, THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED INASMUCH AS APPELLANT WAS DENIED A FAIR DISCIPLINARY HEARING PREJUDICIAL ENOUGH TO WARRANT REVERSAL, AND VIOLATIVE OF APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS AS GUARANTEED BY THE NEW JERSEY CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
a. The Denial to Gather and Present Evidence on Appellant's Behalf Pursuant to New Jersey Administrative Code 10A:4-9.13.
b. The Denial of Confrontation and Cross-Examination, Pursuant to New Jersey Administrative Code 10:4-9.14.
The scope of our review of an agency decision is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry, supra, 81 N.J. at 579-80). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J.Super. 186, 192 (App. Div. 2010) (quoting In re Public Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J.Super. 117, 123 (App. Div. 2002).
We turn now to consider Boone's first contention that the finding of guilt was not based upon substantial credible evidence. Boone argues that he was not obligated to obey Natale's order to "lock in" based upon his belief that his cellmate was homosexual and mentally unstable. Boone does not dispute that he disobeyed an order to "lock in" the cell. Instead, Boone contends that he was justified in not entering the cell based on his religious beliefs concerning homosexuality.
Nolley determined that, notwithstanding Boone's beliefs, he disobeyed an order and did not take an appropriate, alternative course of action to seek a cell reassignment. The adjudication report states:
The rules are clear. The inmate was given an order to house in an assigned area. He should have locked in the cell [and] then asked the [Sergeant] to move him. He refused to move [and] follow orders. This caused a problem on the unit. . . .
Inmate has to follow orders [and] rules. Inmates do not get to pick [and] choose what they want to do or where they want to live.
Based on our review of the record, we are satisfied that substantial evidence supports a finding that Boone violated .256 by refusing the orders.
Boone further argues that he was denied due process by being denied the additional information that he sought prior to the hearing. After careful review of the record, particularly Boone's requests, we determine that he was not entitled to receive that information, which would have potentially included another inmate's confidential records. Further, Boone does not identify any regulations that would require a prison official to make statements on his behalf, as he sought from the Imam and the officers in that housing unit.
Boone next claims that he was denied a fair disciplinary hearing and that his procedural due process rights were violated. Boone does not substantiate, however, any violation of his due process rights contrary to the procedural requirements of Avant v. Clifford, 67 N.J. 496, 528-32 (1975), subsequently codified in N.J.A.C. lOA:4-9.1 through 10A:4-9.28. The evidence adduced at the hearing demonstrates that Boone received timely notice of the charges prior to the adjudication hearing, as well as the assistance of a counsel substitute. A hearing was held before an impartial tribunal where Boone presented a defense with his statements. He had the opportunity to confront and challenge the witnesses, but withdrew his request to do so. Lastly, his counsel substitute signed the adjudication report acknowledging the accuracy of what occurred at the hearing. Based upon our review of the record, we are satisfied that Boone was afforded all due process protections required by Avant, supra, 67 N.J, at 525-33; that the hearing officer's decision was based on substantial evidence that Boone committed the prohibited acts; and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J.Super. 18, 23 (App. Div. 2005); N.J.A.C. 10A:4-9.15(a).
Lastly, Boone fails to identify any error committed by the hearing officer in imposing sanctions. All of the sanctions are consistent with governing regulations. See N.J.A.C. 10A:4-5.1(b) .